1

Filed 8/15/ 18 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

SHAMEKA WINSLETT, Plaintiff and Appellant,

v. 1811 27 TH AVENUE , LLC , et al.
, Defendant s and Respondent s

. A146932
(Alameda County Super. Ct. No. RG15762846)

Shameka Winslett filed a complaint asserting various claims against her former landlord Yugal Sagi and his LLC after he failed to make repairs to her apartment and filed an unlawful detainer action against her. Sagi responded by filing an anti

- SLAPP motion to
strike three of these claims
, for retaliation and retaliatory evictio n under Civil Code section 1942.5, 1 former subdivision (c) 2 and for violation of Oakland Municipal Code section
8.22.300 et seq. , known as the Oakland Just Cause For Eviction Ordinance ( the Just Cause
Ordinance ) . The trial court granted the motion, with an award of attorney fees and costs to Sagi. Winslett now appeals
, claiming the court erred by ruling that (1) the litigation

1 All statutory references are to the Civi l Code unless otherwise stated.

2 By recent amendment effective January 1, 2018, section 1942.5, former subdivision (c) has been redesignated subdivision (d) in a set of revisions designed , among other things, to accommodate the addition of several new subdivisions. ( See Stats. 2017 , ch. 489 , § 6 , No. 6 West’s Cal. Legis. Service, pp. 3720

- 3721.) All further references to section 1942.5 and its subdivisions will be to the current, recently redesignated subdivisions, except in certain instances where, in our discussion of prior law, we specifically reference former subdivisions for purposes of clarity.2

privilege bar s her retaliation and retaliatory eviction claims unde r section 1942.5, and (2) her c la im for violation of the Just Cause Ordinance was based on protected activity
under the anti

- SLAPP statute. We agree on both counts and shall therefore reverse

. I.
BACKGROUND
Sometime in 2010, plaintiff Shameka Winslett and her two young children move d into an apartment in a building owned by 18 11 27th Avenue LLC and Yugal Sagi (collectively Sagi )

. 3 Winsle tt lived with her children in th is apartment for several years and had a third child during that time. By her account, the building was in a state o f gross uninhabitability throughout her tenancy . There w ere alcohol bottles, condoms, drugs
, and
trash in the hallways, and in side her apartment, there was a lack of weatherproofing, water leaking from the upstairs unit, unsanitary kitchen and counters, a nd severe mol d and mildew
contamination

. B eginning in 2013, the pestilent conditions in Winslett’s apartment became
unbearable

. She was pregnant at the time and wanted a healthy living environment for the day

- to

- day activity of her children, who at their tender ages were particular ly vulnerable to filth and vermin. O ne of the most serious issues was the prevalence of cockroaches, which
came from the re frigerator and stove in the apartment and from other units in the apartment complex. Despite he r best efforts to clean, the cockroaches kept coming. Around this same time, the mold and mildew grew so severe that it covered the refrigerator, walls, and window sills. T he presence of loiter er s and general lack of security
added to the intolerable con ditions

. Wi nslett complained repeatedly to Sagi and his on

- site property manager Edgar Vargas

. In response to her numerous complaints
, made both orally and in writing
, Sagi and Vargas did very little. Winslett was told that the cockroaches were
her own fault for not cleaning her apartment well enough and that if she paid her rent , which

3 Yugal Sagi used the entity 1811 27th Avenue LLC as a vehicle to hold ownership of the building. We refer to Mr. Sagi and 1811 27th Avenue LLC collecti vely as “Sagi” fo r convenience.3

had fallen into delinquency, the repairs she requested would be made. But a fter she paid her

r ent bill
, no repairs were made. Winslett believed Sagi and Vargas were ig noring her complaints as a way to force her to move out. If she was so unhappy, she was told, she should just leave.
Because of Sagi ’s and Vargas’ s inaction, Winslett call ed Alameda County Health Care Services, Vector Control Services District (Vector Co ntrol), which
, in August 2013, sent an inspector to her apartment to document the habitability issues she identified

. After the inspection, the inspector spoke with Sagi and informed him the apartment needed to be repaired. Sagi was furious at Winslett and told her she should not have contacted Vector Control and not to call them again in the future. The inspector’s visit led Sagi to make a
few cosmetic repairs
, such as painting over some water damage and mold, but within a few
months the rot reappeare d

. A ccording to Winslett
, even after she called Vector Control, her continued complaints to Sagi and Vargas were still ignored. At no point was she informed she had rights under the Oakland Municipal Code or that she could contact the Oakland Rent Board. Finally, in Decem

ber 2014, Winslett felt she could not tolerate the situation anymore

. She
told Sagi the mold was causing her children to be sick and that the cockroaches were
unbearable . She also told him she would not be paying her rent for January 2015 if these
conditions were not resolved

. By January, no repairs having been made
, Winslett withheld her rental payment. In response, Sagi served Winslett with a three

- day notice to pay rent or q uit and then an unlawful d etainer action when she failed to pay
, which she believed was in retaliation for her requests for repairs and her exercise of her right to withhold rent. Before the

commencement of the unlawful d etainer trial, the matter settled. Winslett a n d Sagi agreed
that Wins lett could remain in the apartment rent free for three months while look ing for a new place to live ; that she would then move out at Sagi’s expense ($1,250 in moving4

expenses ) ; and that in return for her departure, Sagi would d rop the unlawful detainer
action

. 4 Not long after th is settlement, Winslett sue d Sagi for damages
, ultimately alleging 1 5
causes of action in the operative first amended complaint

. 5 In response, Sagi filed a special motion to strike pursuant to Code of Civil Procedure section 425.16 , commonly known as
the anti

- SLAPP statute

. By this motion, he sought to strike three of Winslett’s claims

— the eig hth (retaliation in violation of § 1942.5), the tenth (violation of the Just Cause
Ordinance ), and the fifteenth (retaliatory eviction)

. Sagi a rgued that these causes of action

are based on the protected acts of serving a three

- day notice and filing an unlawful detainer
action . The motion centered on an argument that the litigation privilege ( § 47, subd. (b))
bars liability for such acts. In opposition to Sagi’s anti

- SLAPP motion, Winslett argued that none of her claims

ar i se s out of protected activity and that her cl aim for violation of the Just Cause Ordinance
is not based on Sagi ’ s litigation activity. Winslett also argued that the litigation privilege
does not bar claims for retaliation in violation of section 1942.5. She supported her opposition with an evidentiary showing reciting and documenting the facts summarized

4 The stipulated dismissal included a waiver of Sagi’s claims for rent and daily damages through June 4, 2015 (the date Winslett moved out), a waiver of claims on both sides for fees and costs incurred in the unlawful detainer action, and a waiver of Winslett’s claim to her security deposit and last month’s rent. The settlement terms do not mention any othe r claims and include no general mutual release of claims.

5 The pleaded claims in the operative first amended complaint are for: (1) tor tious breach of the implied warranty of habitability (§ 1941); (2) contractual breach of the implied warranty of habitability (§ 1941); (3) violation of section 1942.4; (4) breach of contract (§ 3300 et seq.); (5) breach of quiet enjoyment (§ 1927); (6) pr ivate nuisance (§ 3501 et seq.); (7) premises liability (§ 1714); (8) retaliation in violation of section 1942.5, subdivision (d); (9) negligence; (10) violation of the Oakland Just Cause Ordinance (Oakland Mun. Code, § 8.22.300 et seq.); (11) violation of the Oakland Tenant Protection Ordinance (Oakland Mun. Code, § 8.22.600 et seq.); (12) constructive eviction

— negligence; (13) unfair business practices (Bus. & Prof. Code, §§ 17200 et seq., 17500); (14) fraud; and (15) retaliatory eviction.5

above, in her own declaration and various exhibit s documenting her tenancy

. Sagi lodged a raft of objections on relevance, hearsay, and lack of foundation grounds. After hearing argument on the anti

- SLAPP motion
, the trial court granted it , striking all three of the challenged causes of action

. T he court ruled that these claims are based on protected activity because “the filing of unlawful detainer actions [is] protected activity,”
and “the gravamen of this case is

. . . the UD case itself.” The co urt also ruled , as a matter of law, that the litigation privilege prevent s Winslett from succeeding o n any of the three
claims

. It overruled Sagi’s evidentiary objections
, except for the relevance objection
, which it sustained in light of its ruling on the litigation privilege. Prominent in the court’s reasoning was the voluntary settlement of the unlawful
detainer action. The court noted that the unlawful detainer case was dismissed 12 days
before Winslett filed her lawsuit against Sagi and indicated that it was bearing in mind the way th at action ended

— in the form of a n agreed resolution. “[I]n looking at the probability of success in this case,” the court said, the settlement was significant, since it bo re on “the potential relevancy” to th e merits of her current claims. This timely appeal followed . Three days after Winslett filed her notice of appeal, Sagi filed a motion in the trial court for attorney fees and costs under Code of Civil
Procedure secti on 425.16, subdivision (c) (1)

. That motion was eventually granted, with the
court award ing him $ 9,465 in fees and costs

. A long with her appeal of the order on the underlying anti

- SLAPP motion , Winslett now seeks review of the award of fees and costs

. II.
DISCUSSION
A. Standard of Review
Anti

- SLAPP analysis under Code of Civil Procedure section 425.16 proceeds in two
familiar steps

. In the first step, the defendant must make “ ‘ “a threshold showing that the challenged cause of action is one ‘aris ing fr om’ protected activity.” ’ ” ( Barry v. State Bar of California (2017) 2 Cal.5th 31 8, 321 ( Barry ); Navellier v. Sletten (2002) 29 Cal.4th 82,
88 ( Navellier ).) In this context, the term “ ‘ “protected activity” ’ ” refers to speech or petitioning activities. ( Barry , supra , 2 Cal.5th at p. 321.) If the court finds the defendant6

succeeds at the first step, then the burd en shifts to the plaintiff to “ ‘ “demonstrate[ ] a probability of prevail ing on the claim.” ’ ” ( Ibid. ) A claim arises from protected activity when that activity underlies or forms the basis
for the claim. We look to whether “ ‘the defendant’s act underlying the plaintiff’ s cause of
action [was] itself

. . . an act in furtherance of the right of petition or free speech. ’ ” ( Park v. Board of Trustees of California State University (2 017) 2 Cal.5th 1057, 1063 , italics added ( Park ).) “ [T]he focus is on determining what ‘the defendant’ s activity [is] that give s rise to his or her asserted liability

— and whether that activity constitutes protected speech or petitioning. ’ ” ( Ibid .) I n teasing out whether we are dealing with protected conduct
, “ courts should consider the elements of the challeng ed claim and what actions by the defendant supply those el ements and consequently form the basis for liability.” ( Ibid. ) At the second step, “ ‘ [w] e

. . . evaluate the defendants ’ evidence only to determine if it defeats that submitted by the plaintiff as a matter of law. ’ [Citation.] ‘ [I]n order to
establish the requisite probability of prevailing [citation], the plaintiff need only have

“ ‘ stated and substantiated a legally sufficient claim. ’ ” [Citation.] “ Put another way, the plaintiff ‘ must demonstrate that the complaint is both legally sufficient and s upported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. ’ ” ’ [Citation.]

. . . That burden [is] not particularly high [.]” ( Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 602 ; see Navellier
, supra , 29 Cal.4th at p. 94 [“claims with the requisite minimal merit may proceed”]

. )
If the cause of actio n satisfies both prongs of the anti

- SLAPP statute, then it is subject to being stricken. ( Barry , sup ra , 2 Cal.5th at p. 321.) On appeal, this c ourt reviews a trial court’s order granting an anti

- SLAPP motion de novo

. ( Chodos v. Cole (2012)
210 Cal.App.4th 692, 698.) Thus, whether a defendant has met his or her burden under the first prong, and if so, whether a plaintiff has shown a probability of prevailing under the second prong, are both questions this c ourt reviews independently on appeal. ( Kashian v.
Harriman (2002) 98 Cal.App.4th 892, 906.) On de novo re view
, “ ‘ [ w ] e look at the pleadings and declarations, accepting as true the evidence that favors the plaintiff and7

evaluating the defendant’s evidence “ ‘ only to determine if it has defeated that submitted by the plaintiff as a matter of law. ’ ” ’ ” ( Luna da Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 470.)
The trial court’s evidentiary rulings at the second step of the anti

- SLAPP analysis are generally reviewed for abuse of discretion. ( See Morrow v. Los Angeles Unified School
Dist. (2007) 149 Cal.App.4th 1424, 1444

- 1446.) But w hen a trial court excludes evidence because, “even if the plaintiff’ s allegations were proven, they would not establish a cause of action,” that is a legal ruling subject to de novo review. ( Edwards v. Centex Real Estat e Corp. (1997) 53 Cal.App.4th 15, 26

- 28 [evidence excluded based on litigation privilege and parol evidence rule]; see Condon

- Johnson & Associates, Inc. v. Sacramento Municipal Utility Dist. (2007) 149 Cal.App.4th 1384, 1392 [“when the issue is one of law, we exercise
de novo review”].)
B. Sagi’s Evidentiary Objections
P reliminar il y , we address a series of evidentiary objections raised by Sagi as a threshold matter. He argues that regardless of the merit of the various legal arguments
Winslett advances
, he r appeal must fail because none of the evidence she presented is
admissible and thus she cannot meet her burden on the second prong of the anti

- SLAPP analysis for any of the three disputed claims

. In support of this l ine of argument, Sagi contends, as h e did in the trial court, that the sworn statements in Winslett’s declaration and the documents she presented lacked foundation, set forth improper opinions and conclusions, and were hearsay, and that all of her evidence was irrelevant.
Th ese evidentiary issues are easily resolved. We see no abuse of discretion in the trial court’s rejection of Sagi’s hearsay, lack of foundation, and improper opinion and
conclusion objections . R elevance is another matter

. On that point, the court sustain ed Sagi’s objection, but it did so on the premise that none of Winslett’s evidence has any relevan ce to claims that are not legally viable as pleaded

. For the reasons explained below,

we hold that th at underlying premise was erroneous. Thus, the exclusion of Winslett’s evidence on relevance grounds was erroneous as well

.8

Since Sagi does not dispute that, if Winslett’s evidence is admissible, she met the minimal burden necessary to make a prima facie case supporting the three disputed claims,

we tu rn to his arguments that those claims fail as a matter of law.
C

. Claims Under S ection 1942.5
, S ubdivision ( d ) Section 1942.5, subdivision (d ) provides that “it is unlawful for a lessor to increase rent, decrease services, cause a lessee to quit involunta rily, bring an action to recover possession, or threaten to do any of those acts
, for the purpose of retaliating against the lessee because he or she has lawfully organized or participated in a lessees ’ association or an organization advocating lessees ’ ri ghts or has lawfully and peaceably exercised any rights under the law.” Subdivision ( h ) of the statute , in turn, states that “Any lessor or agent
of a lessor who violates [ section 1942.5] shall be liable to the lessee in a civil action for all of the following: [¶] (1) The actual damages sustained by the lessee. [¶] (2) Punitive damages in an amount of not less than one hundred dollars ($100) nor more than two thousand dollars ($2,000) f or each retaliatory act where the lessor or agent has been guilty of fraud, oppression, or malice with respect to that act.” The landlord can defend against an action for retaliatory eviction by showing that it acted “ for any lawful cause” (§ 1942.5,
subd . ( f )) or “in good faith” ( id ., subd. ( g )). 6

6 T here are two sets of remedial provisions in section 1942 .5. First, subdivision (a) prohibits certain acts by a landlord if they occur within 180 days of the tenant making specified complaints ( § 1942.5, subd. (a)(1)

- (2)) or of specified events occurring ( id.
, subd. ( a)(3)

- (5)) . Second, s ubdivision (d) provides that certain retaliatory acts by a landlord are illegal. While subdivision (a) and subdivision (d) are somewhat different in scope

— most obviously because only a tenant who is not in default on her rent may inv oke subdivision (a)

— subdivision (h) makes “[a]ny lessor

. . . who violates this section

. . . liable to the lessee in a civil action.” Because subdivision (h) applies broadly to any violation of

“ this section ” (italics added), which of course includes sub division (a), civil actions for damages appear to be available for violation of subdivision (a), as well as subdivision (d). Without setting out an argument by separate heading, Winslett suggests as an aside in her opening brief that her eighth and fifteen th claims are supported by subdivision (a) as well as subdivision (d). But she does not explain why she is entitled to invoke subdivision (a) even though the eviction here was indisputably based on non payment of rent. Perhaps she would argue that she was current on her rent when the specific violations of section 1942.5, subdivision (a) she alleges took place; or perhaps she would take the position that9

Winslett’s eight h cause of action for retaliation and fifteenth cause of action for retaliatory eviction both rest on section 1942.5, subdivision (d ) , as asserted in a “civil action” under subdivision (h). Eac h claim incorporate s by reference the same factual background allegations, which include events encompassing the entire history of Sagi’s alleged indifference to Winslett’s complaints about dilapidated conditions ; her complaint to
Vector Control ; Sagi’s irate response ; and Sagi’s continued refusal to make meaningful repairs after the visit from Vector Control
, finally culminating in his serving a notice to quit and filing an unlawful detainer action. Specifically, in paragraph 15 of the first ame nded complaint
, Winslett alleges that “On or about January 21, 2015, [Sagi] filed an unlawful
detainer lawsuit seeking to evict [her] from the Subject Premises.”
The f iling of an unlawful detainer complaint is anti

- SLAPP protected activity, as is
service of a notice of termination preceding an unlawful detainer complaint. ( Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1286 ( Clark ); Birkner v. Lam (2007)
156 Cal.App.4th 275, 281

- 282

. ) Because Winslett conce des that the eighth and fifteenth
claims are founded on protected activity

— as she mus t in the face of this precedent , since

“ bring [ing ] an action to recover possession ” and “ threaten [ing] to ” bring such an action by notice to quit are elements of the se claims
, as pleaded (see Civ. Code, § 1942.5 , subd. (d))

— our examination of the trial court’s order striking them will f ocus on the court’s second prong conclusion that she failed to demonstrate a probability of prevailing

.

the alleged uninhabitability of her apartment vit iated her rent obligation. We do not know, and we will not endeavor to guess. Arguments not raised by a separate heading in an opening brief will be deemed waived . ( See Cal. Rules of Court, rule 8.204(a)(1)(B); Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830

- 1831, fn. 4 [ “The failure to head an argument as required by California Rules of Court

. . . constitutes a waiver ” ] ; Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1345, fn. 17 [ “Each point in an appellate brief should appear under a separate heading, and we need not address c on tentions not properly briefed ” ]. ) We will therefore treat the eighth and fifteenth claims as having been made solely under s ection 1942.5, subdivision (d).10

We first address w hether the trial court was correct to rule that the litigat ion privilege applies to claims brought under section 1942.5, subdivision (d) , a topic that, according to
Winslett , presents “ [ t ] he most important question in this case. ”

1. Statutory History
W e begin by tracing the origins of th e statute

. T h e statutory cause of action now embodied in section 1942.5, subdivisions (d) and (h)
, was not always included in section
1942.5

. As originally enacted in 1970, section 1942.5 was “part of comprehensive landlord

tenant reform legislation. Assembly Bill No. 2033, 1970 R egular Session (Stats. 1970,
ch. 1280) [AB 2033] amended section 1942 and added sections 1941.1, 1941.2, 1942.1 and
1942.5

. [ AB 2033] established the statutory retaliatory eviction defense (§ 1942.5)

. . . specified the condit ions which rendered a dwelling ‘untenantable’ (§ 1941.1), enunciated tenants’ responsibilities (§ 1941.2), clarified tenants’ rights to make repairs themselves and deduct the cost from their rent (§ 1942), and prohibited the waiver o f tenants’ statutory rights (§§ 19 42.1; 1942.5, subd. (c)). ” ( Kriz v. Taylor (1979) 92 Cal.App.3d 302, 310

- 311

. ) What eventually became the current statutory cause of action for retaliatory eviction
, which

was added to this scheme by amendment in 1979, had its genesis in common law
devel opments independent of section 1942.5.
The se common law developments began nearly simultaneously with the enactment of
section 1942.5
, in Sc hweiger v. Superior Court (1970) 3 Cal.3d 507, 513 ( Schweiger ), a case involving an eviction predating enactment of the statute. There, a tenant who paid $75 per month in rent complained to his landlord about dilapidated conditions, and in response,
the landlord increased his rent to $125 per month and then evicted him

. ( Id. at p. 510.) Our Supreme Court held that a retaliatory eviction defense was available in the eviction proceedings, independent of section 1942.5. Borrowing heavily from Edwards v. Habib (D.C. Cir. 1968) 397 F.2d 687 ( Edwards ), the Schweiger court grafted the holding in
Edwards onto Ca lifornia law: “ ‘ [W]hile the landlord may evict for any legal reason or for no reason at all, he is not, we hold, free to evic t in retaliation for his tenant’ s report of housing code violations to the authorities. As a matter of statutory construction an d for11

reasons of public policy, such an eviction cannot be permitted. ’ ” ( Schweiger
, supra , at
pp. 512

- 513.) Less than a year later, the same landlord surfaced again in Aweeka v. Bonds (1971) 20 Cal.App.3d 278 , a Court of Appeal case that also involv ed a pre

- section 1942.5 eviction.
The Aweeka case was a virtual replay of Schweiger
, supra, 3 Cal.3d. 507
, but in a slightly different procedural posture

. There, a group of tenants demanded the repair of dilapidated conditions, and for that, their rent was raised from $75 to $145 per month. Instead of waiting to be sued in an unlawful detainer action, the y sued for retaliatory eviction

. The y lost on demurrer. Reversing, the Court of Appeal extended Schweiger to authorize an
affirmative claim for damages

. The court explained: “We can discern no rational basis for allowing

. . . a substantive defense while denying an affirmative cause of action. It would be unfair and unreasonable to require a tenant, subjected to a retaliatory rent increase by the
landlo rd, to wait and raise the matter as a defense only, after he is confronted with an unlawful detainer action and a possible lien on his personal property.

. . . Accordingly, we conclude on the authority of Schweiger that the complaint stated a cause of acti on for retaliatory eviction.” (

Aweeka
, supra , at p. 281.) Following Schweiger

, 3 Cal.3d. 507, there was some uncertainty as to whether AB 2033 took up the field and provided an exclusive set of tenant

- protection remedies

. Gre en v. Superior Court (1974) 10 Cal.3d 616 supplied the answer. In that case, the high

c ourt held that there is an implied warranty of habitability in residential leases and that damages may be recovered if a breach of the warranty is proved. “Although past cases have
held t hat the Legislature intended the remedies afforded by section 1942 to be the sole procedure for enforcing the statutory duty on landlords imposed by section 1941,” the
Green co urt explained, “no decision has suggested that the Legislature designed these statutory provisions to displace the common law in fixing the respective rights of landlord
and tenant. On the contrary, the statutory remedies of section 1942 have traditionall y been viewed as additional to, a nd complementary of, the tenant’ s common law rights.” ( Green , supra , at pp. 629

- 630.)12

Two years after its decision in Green v. Superior Court , supra , 10 Cal.3d 616
, the high court went a step further i n S.P. Grower s Ass n

. v. Rodriguez (1976) 17 Cal.3d 719 ( S.P. Growers ) , a retaliation case that had nothing to do with tenantability

. S.P. Growers
created a variant of the Schweiger rule for retaliat ion against the exercise of legally protected rights. Th e landlord in that case was a corporate agricultural employer who
evict ed migrant farm worker tenants for bringing suit against it to enforce their rights under
the federal Farm Labor Contractor Registration Act

. Upholding the tenants’ right to claim
retaliation in t hese circumstances, t he court concluded that “the holding in Schweiger [,

supra , 3 Cal.3d 507] cannot be limited to the narrow proposition that tenants are protected from retaliation only when they take action concerning the conditions of their tenancy.” ( S.P. Growers , supra , at p. 728.) Regardless of whether the statutory rights a tenant seeks to exercise are created by Congress or the Legislature, “ the crucial question” i s whether the statutory policy being vindicated “depend s for its effectiveness on private initiative and would thus be emasculated by allowing punitive eviction.” ( I bi d .) 7 In 1979, the Legislature repealed and reenacted section 1942.5
, at that point adding
the statutory c ause of action that we now see in current subdi visions (d) and (h). ( See section 1942.5, former subds. (c), (f)
, as enacted by Stats. 1979, ch. 652, § 2, p p . 2005

-

7 For its holding, the high court relied on two lines of precedent. First, the court cited Abstract Investment Co. v. Hutchinson (1962) 204 Cal.App.2d 242, a case that applied equal protection principles drawn from Shelley v. Kraemer (1948) 334 U.S. 1 in circumstances where “a tenant contended

. . . he was being evicted for racial reasons. Although such a complaint did not relate directly to the conditions of tenancy, the Court of Appeal held that a landlord may not permissibly invoke the power of a court to evict a person because of his color.” ( S.P. Growers, supra, 17 Cal.3d at p. 728 .) S econd, the court drew on authority from a wholly different context, but one presenting similar considerations to those at issue with landlord retaliation against tenants

. Citing the seminal employee termination in violation of public policy case ( Petermann v. International Brotherhood of Teamsters (1959) 174 Cal.App.2d 184 [employer’s otherwise unfettered right of at

- will termination does not permit termination of employee for his refusal to commit perjury]) , t he court said that landlord retaliation can cro ss a similar line.

“ [S] uch cases ‘instruct us that one may not exercise normally unrestricted power if his reasons for its exercise contravene public policy.’ ” ( S.P. Growers, supra, 17 Cal.3d at p. 728 .)13

2006; § 1942.5 , subds. (d)
, (h), as amended by Stats. 2017 , ch. 489 , § 6 , No. 6 West’s Cal. Legis. Service, pp. 3720

- 3721

. ) Taking common law r ights recognized by the high court over the preceding decade as a foundation, the Legislature enlarged and built upon the
limited sc heme of statutory remedies it had first created in AB 2033. 8 Barela v. Superior
Court (1981) 30 Cal.3d 244 ( Barela ) wa s the first case to come before the court under section 1942.5, as so amended. The tenant in Barela faced eviction proceedings after reporting a landlord’s sexual molestation of her daughter to the police

. The trial court ruled
that the eviction was not barred by section 1942.5 or by the standards of S.P. Growers

. D rawing upon Edwards as a bellwether

— as Schweiger d id ( Schweiger
, supra , 3 Cal.3d at

p. 512) , and as S.P. Growers did ( S.P. Growers , supra , 17 Cal.3d at p. 7 25)

— the court granted writ relief.
O ver the landlord’s objection that extending S.P. Growers would hinder the summary eviction process, the Barela court explained that “ ‘[s]ome delay, of course, is inherent in any fair

- minded system of justice.

. . . Our courts were never intended to serve as rubber stamps for landlords seeking to evict their tenants, but rather to see that justice be done before a man (or woman) is evicted from his (or her) home.’ ” ( Barela
, supra , 30 Cal. 3d at p. 244.) The court co ncluded that “[t] his case is an even stronger one than S.P.
Growers

. . . wherein this court stressed the importance of preventing retaliatory
evictions

. . . [th r ough] a remedial scheme [that] depends upon private initiative for
enforcement.

. . . [¶] The strong public policy interests in preserving the summary nature of the unlawful detainer proceeding will not be significantly impaired if the affirmative defense of retaliatory eviction is allowed here.” ( Barela
, supra , 30 Cal.3d at p. 244.)
Barela also put to rest any remaining “ notion that the common law retaliatory eviction defense was preempted by statute,” th ereby definitively confirming that “ California

8 See section 1942.5, former subdivision ( h ), as e nacted by St atutes 1979, chapter 652, section 2, page 2006 [“[t]he remedies provided by this section shall be in addition to any other remedies provided by statutory or decisional law”]; section 1942.5, subdivision (j), as amended by Statutes 2017 , chapter 489 , section 6 , No. 6 West’s California Legislative Service, page 3721.14

has two parallel and independent sources for the doctrine of retaliatory eviction.” ( Glase r v. Meyers (1983) 137 Cal.App.3d 770, 775

. ) I n interpreting section 1942.5
, the court was expansive, emphasizing the “important public policies” the remedies a uthorized by that

statute serve . Section 1942.5, the court said, “is a remedial statute aimed at protecting tenants from certain types of abuses” ( Barela
, supra , 30 Cal.3d at p . 251), and “[i] mplicit in the passage of any remedial legislation is a general intent to protect from intimidation those who report violations of the law. ” ( Id

. at p. 252. ) Thus, section 1942.5 is to be “ ‘ liberally construed to effect its objectives and to suppress, not encourage, the mischief at which it
was directed .’ ” ( Barela
, supra , at p . 251.)

2. Action Apartment v. City of Santa Monica Turning specifically to whether the litigation privilege defeats Winslett’s claims under section 1942.5, subdivision (d), Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232 (

Action Apartment ) provides the framework for analysis. At issue
in that case was the City of Santa Monica’s Tenant Harassment Ordinance, which prohibited, among other things, maliciously serving a notice of eviction or bringing any action to recover possession of a rental unit without a reasonable factual or legal basis. ( Id. at p. 1 237.) Violation of this prohibition was subject to both criminal and civil penalties, with civil enforcement available to “ ‘[ a ] ny person. ’ ” ( Id. at p. 1239.) The case was a class action by landlords seeking to have Santa Monica Municipal Code section 4.56.0 2 0 , subdivision (i)(1) declared invalid on preemption grounds, and among the statutes cited as having preemptive effect was section 47, subdivision (b) , which embodies the litigation privilege. (

Action Apartment , supra , at pp. 1239

- 1240.)
T he text of section 47, subdivision (b), “provides that a ‘publication or broadcast’ made as part of a ‘judicial proceeding’ is privileged. This privilege is absolute in nature, applying ‘to all publications, irrespective of their maliciousness.’ [Citation.] ‘Th e usual formulation is that the privilege applies to any communication (1) made in judicial or quasi

judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some conne ction or logical relation to the action.’ [Citation.] T he privilege ‘is not limited to statements made during a trial or other15

proceedings, but may extend to steps taken prior thereto, or afterwards.’ [Citation.]” ( Action Apartment , 41 Cal.4th at p. 12 41.) Traditionally, the privilege has been given “a broad interpretation” in order to achieve its “ ‘principal purpose’ ” to afford litigants and witnesses “ ‘the utmost freedom of access to the courts without fear of being harassed subsequently by derivat ive tort actions.’ ” (

Action Apartment , 41 Cal.4th at p. 1241.) “[C] ourts have emphasized the importa nce of the litigation privilege’ s absolute protection of access to the courts, while recognizing that this absolute protection has its costs,” since, inevitably, its invocation will
sometimes shield “ ‘ “ the shady practitioner” ’ ” along with the honest ones. ( Id . at
p. 1244.) “ ‘ [I]n immunizing participants from liability for torts arising from
communications made d uring judicial proceedings, the law places upon litigants the burden of exposing during trial the bias of witnesses and the falsity of evidence, thereby enhancing the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse
than an occasional unfair result. ’ ” ( I bi d. ) Applying these principles, the high court in Action Apartment held that to the extent the challenged ordinance cover s the fi ling of an eviction action ( “bringing ‘ an y action to recover possession of a rental housing unit based u pon facts which the landlord had no reasonable cause to believe to be true or upon a legal theory which is untenable under the
facts known to the landlord ’ ” ) , it conflict s with and is entirely preempted by the litigation privilege. (

A ction Apartment , 41 Cal.4th at p p

. 1249

- 1250.) But to the extent the ordinance

cover s pre litigation service of an eviction notice (malicious “ ‘ serv ice of a ny notice to quit
or other eviction notice ’ ”), it conflicts with the litigation privilege “only in part.” ( Id

. at
p. 1250. ) In this latter respect, the ordinance might, or might not, conflict with the litigation privilege, depending on whether the notice in question genuinely “relates to litigation that is contemplated in good faith,” which is a “fac tual inquiry.” ( Id . at p p . 1251

- 1252.)
T he Action Apartment court was careful to note that the Legislature remains free to

create “ exceptions to the litigation privilege based on irreconcilable conflicts between the privilege and other coequal state laws

. ” ( Action Apartment , 41 Cal.4th at p. 1247.) Bearing in mind that “ the distinction between state and local laws” is “ [f] undamental to the doctrine16

of preemption ,” the court explained that “local governments lack the authority to craft their

own exceptions to general state laws

. ” ( Ibid .) By contrast, the court cited a list of
illustrative cases where it found statutory exceptions to the litigation privilege

. ( Id. at
p. 1246.) “ [ O ] ur recognition of

. . . [ such] exceptions ,” the court said, “ has been guided by
the ‘ rule of statutory construction that particular provisions will prevail over general provisions. ’ ” ( Ibid .) In each c ase, the statute involved w as “more specific than the litigation privilege and would be significantly or wholly inope rable if its enforcement were barred when in conflict with the privilege.” ( Ibid .)

3. Litigation Privilege Must Yield to Section 1942.5
Because the scheme of retaliatory eviction remedies in section 1942.5 meet s the test of specificity set out in Action Apartment and would be rendered significantly inoperative if the litigation privilege were to apply, we agree with our Second District, Division One colleagues in Banuelos v. LA Investment, LLC (2013) 219 Cal.App.4th 323 ( Banuelos ) that
section 19 42.5, sub divisions (d) and (h)

— in Banuelos
, former subdivisions (c) and (f )

—
create an exception to the litigation privilege. “The statute’ s reference to a landlord ’ s liability ‘in a civil action’ for bringing ‘an action to recover possessi on’ in retaliation for a
tenant’ s exercise of rights coupled with the provision recognizing a good faith defense ‘at the trial or other hearing’ demonstrates that the Legislature intended to create a cause of action for retaliatory eviction that is not barred by the litigation pri vilege. If the litigation privilege trumped a suit for retaliatory eviction under section 1942.5 the privilege would

‘ “effectively immunize conduct that the [statute] prohibits” ’ [ c itation], thereby encouraging, rather than suppressing, ‘ “the mischief at which it was dir ec ted

. [Citation.]” ’ ” ( Banuelos
, supra , a t p. 332.)
S ection 1942.5, subdivis i ons (d) and (h) are not only more specific than section 47, subdivision (b), they are also later enacted

. Section 47 was enacted in 1872 (and was
amended in 1873

- 1874 to specify a privileged publication is one made “ ‘ in any legislative or judicial proceeding
, or in any other official proceeding authorized by law ’ ”) (see Historical and Statutory Notes, 6 West’s Ann. Civ. Code (2007 ed.) f oll. § 47, p. 303) , predat ing the statutory retaliatory evict ion cause of action in section 19 42.5 by more than a17

centur y

. Bearing in mind both principles of construction ( see Collection Bureau of San
Jose v. Rumsey (2000) 24 Cal.4th 301, 310 [ “[i]f confl icting statutes cannot be reconciled, later enactments supersede earlier ones

. . . and more specific provisions take precedence over more general ones” ] ) , w e conclude that the Legislature must have been fully aware of the existing litigation privilege and intended to override it when it authorized a n affirmative
cause of action to combat retaliatory eviction. To justify a contrary conclusion, we would
have to believe that the Legislature “ intended to do a useless act.” ( Banuelos
, supra , 219 Cal.App.4th at p . 335 .) The statutory history traced above, intertwined with the parallel common law developments out of which the statute arose, provides considerable support for this conclusion. Section 1942.5, subdivisions (d) and (h) seek to vindicate policies that “depend [] for [ their ] effectiveness on private initiative and would thus be emasculated by allowing punitive eviction .” ( S.P. Growers , supra , 17 Cal.3d at p. 728.) B y building upon the common law doctrine of retaliatory eviction, the Legislature embraced the high court’s recognition of the vital importance of private enforcement in this arena . Wh at makes the affirmative statutory claim for retaliatory e viction more potent as a n enforcement tool than the defense of retaliatory eviction is precisely the fact that, at the tenant’s option, it may be asserted independently

— as Winslett chose to do here

— outside of summary eviction proceedings. Presumably, the Legislature recognized th is and chose to create an affirmative
cause of action b ecause it viewed the opportunity to raise th e i ssue of retaliatory eviction by way of defense as inadequate, given the inherent constraints of summary eviction proceedings. 9

9 In unlawful detainer proceedings t enants are not allowed to file cross

- complaints. ( Knowles v. Robinson (1963) 60 Cal.2d 620, 625

– 627.) And “[a]s a practical matter, the freedom to engage in ‘liberal’ discovery is far narrower in [unlawful detainer] proceedings than in general civil actions.” (Friedman et al., Cal. Practice Guide: Landlord

- Tenant (The Rutter Group 2017), ¶ 8:436.) Accelerated discovery and other deadlines “severel y limit the time the parties have to complete their discovery and thus, necessarily, limit the discovery options available to [unlawful detainer] litigants.” ( Ibid., citing Code Civ. Proc., §§ 1170.8 [discovery motions on five days’ notice], 1170.7 [summa ry judgment on five18

Th e litigation privilege is “ not without limit,” as the Action Apartment court took pains to point out . (

Action Apartment , supra , 41 Ca l

. 4th at p. 1242.) Because recognition
of the privilege here would neuter section 19 42.5 by remov ing eviction from the statutory remedy of retaliatory eviction
, we view t he clash between section 47, subdivision (b) , on the one hand, and section 19 42 .5 , subdivision s (d) and (h) , on the other, as irreconcilable. T o be consistent with the high court’s guidance that we gi ve section 1942.5 a liberal
construction designed to achieve the l egislative purpose , we conclude that the litigation privilege must yield to it

. ( Barela
, supra , 30 Cal.3d at p

. 251 ; Banuelos
, supra , 219 Cal.App.4th at p . 331 ; cf

. Komarova v. National Credit Acceptance, Inc. (2009)
175 Cal.App.4th 324, 340 [ “T he Legislature presumably would not have included ” protections against specific kinds of litigation abuse by debt collectors under the Robbins

Rosenthal Fair Debt Collection Practices Act “ if it intended for the privilege to apply.

. . . [T] he Act is ‘a remedial statute [that] should be interpreted broadly in order to effectuate its

purpose ’ ” ].)
4. Feldman and Wallace Sagi insists that section 47, subdivision (b) appl ies to Winslett’s eighth and fifteenth causes of action, citing two cases, both from this D istrict, one from Division Two,
Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467 ( Feldman ) , and one from Division Five, Wallace v. McCubbin (2011) 196 Cal.App.4th 1169 ( Wallace ) , disapproved of on other grounds in Baral v. Schnitt (2016) 1 Cal.5th 376, 396 , footnote 11

. Feldman was a case involving a luxury apartment in a building known as the Park L ane , at 1100 Sacramento Street in San Francisco

. ( Feldman , at p. 1473.) The Fe ldmans, a couple moving to the west coast from New York, attempted to sublet an apartment in the Park Lane
and w ere told by S e igel, an attorney for the landlord
, that their sublease application was conditionally approved, but t hey moved in only to discover that the landlord had not in fact approved the sublease and wanted substantially increased rent as the price of his assent

. ( Id. at pp. 1473

- 1474.) After what they claimed were harassing visits from a man named

days’ notice], and 1170.5 [trial se tting 20 days after request].)19

Hawkins who d escribed himself as a “ ‘ trouble shooter ’ ” for the landlord, the Feldmans were served with a notice to quit and then named in an unlawful detainer action

. ( Id. at
pp. 1474

- 1475.) Rather than fight the case, they moved elsewhere , mooting the unlawful
det ainer complaint. ( Id. at p. 1475.) The appeal in Feldman involved the Feldmans ’ cross

- complaint for damages in the unlawful detainer action, by which they asserted seven claims, including a retaliatory eviction claim under section 1942.5, former subdivision (c )

. ( Feldman
, supra , 160 Cal.App.4th at pp. 1475

- 1476, 1492

- 1494.) On the landlord’s anti

- SLAPP motion, the
trial court struck this claim, and o n appeal
, our Division Two colleagues affirmed

. ( Id. at
pp. 1473, 1476, 1498.) T he panel held
, first, in step one of the anti

- SLAPP analysis
, that the gravamen of the Feldman s ’ claims was protected conduct ( Feldman
, at p p

. 1478

- 1484) , and second, i n step two , that none of the claims w as likely to succeed , in part because the

“ Park Lane cross

- defendants have produced evidence that Hawkins’ s statements, the service of the notice to quit and the unlawful detainer action were shielded by the litigation privilege

. ” ( I

d . at p

. 1491.) Although section 47, subdivision (b) was one of the ground s cited for the court’s holding on likelihood of success ( Feldman , at pp. 1485, 1491) , nowhere
in its opinion is any consideration given to whether section 1942.5 , former subdivision (c) should be recognized as an exception to the litigation privilege.
Wallace , another anti

- SLAPP case involving a statutory retaliatory eviction claim, adopts the same holding without independent analysis

. ( Wallace
, supra , 196 Cal.App.4th at

pp. 1214

- 1215.) Of Wallace
, the Banuelos court observe s that, “[l]ike Feldman,

. . . [it] d id not discuss or analyze Action Apartment and the litigation privilege nor did it distinguish between a city ordinance and a state statute when resolving the conflict issue

. ” ( Banuelos
, supra , 219 Cal.App.4th at p . 333

. ) Although it is probably an overstatement to say that
neither case discuss es or analyzes Action Apartment

— that is true of Wallace , but Feldman
does address Action Apartment at some length ( Feldman
, supra , 160 Cal.App.4th at

pp. 1486

- 1487)

— the problem with Feldman is that its analysis is incomplete . It discusses Action Apartment but never considers the issue of conflict with a coequal statute, a key limiting principle to the Action Apartment holding. The reasoning in Wallace is even more20

truncated. In a discussion dealing with a rent ordinance claim ( Wallace, supra , at p p

. 1212

- 1213 ) , it string cites Action Apartment , Feldman
, and Bisno v. Douglas Emmett Realty Fund
1988 (2009) 174 Cal.App.4th 1534

— a case that does not involve the issue of statutory
conflict or section 1942.5

— and then later, in a brief section dealing separately with the retaliatory eviction claim ( Wallace, at p p

. 1214

- 1215 ) , refer s back to its prior rent ordina n ce discussion
, finally concluding with the c ategorical announce ment that bringing an eviction action and serving a notice to quit are “acts

. . . subject to the absolute privilege of Civil Code section 47, subdivision (b ) .” ( Id. at p. 1215.) Suffice it to say w e find neither o f these

cases persuasive . Instead, we opt to follow the more recent and in our view better reasoned opinion in Ban u elos

.

5

. Agreement to Vacate Separate and apart from his litigation privilege argument, Sagi argue s that Winslett cannot establish a claim for retaliatory eviction under section 1942.5, subdivision (d )
because she was not evicted. Drawing on Banuelos for what little assistance it might offer
him here, Sagi cite s a portion of the Banuelos opinion holding that “ [ a plaintiff ] cannot state

a common law cause of action for retaliatory eviction because that cause of action applies only to conduct that causes the tenant to involuntarily vacate the premises.” ( Banuelos,

supra, 219 Cal.App.4th a t p. 328, italics added.) In Banuelos
, the court ruled that while a common law cause of action requires actual eviction, a claim under section 1942.5 does not. ( Banuelos, at p p. 328, 336. ) In this case, on the other hand, Winslett’s claim for re taliatory
eviction is based on section 1942.5, subdivision (d ), not common law, so Sagi ’s attempt to apply Banuelos in his favor misses the mark

. Citing Drouet v. Superior Court (2003) 31 Cal.4th 583 ( Drouet ), Sagi adds a twist to this line of argument, based on proviso language in section 1942. 5, former subdivision (d)
, stating that “ ‘ [ n ] othing in this section shall be construed as limiting in any way the exercise by the lessor of his [ or her ] right s under any lease or agreement or any law pertaining to the hiring of property or his [ or her ] right to do any of the acts d escribed in subdivision [s] (a) or [former] (c) for any lawful cause

. ’ ” ( Drouet , supra, at p. 592, i talics added , citing21

§ 1942.5, former subd. (d) .) 10 He argues that, given th e proviso insulating landlord actions undertaken by “agreement,” Winslett cannot make out a statutory retaliatory eviction claim
because she agreed to abandon her tenancy. The argument is mistaken . Only lawful eviction proceedings are protected by former subdivision (d)
, while retaliatory eviction is

not. Both sectio n 1942.5, f ormer subdivision (f

) and its current embodiment in section 1942.5, subdivision ( h ) state that “ [ a ] ny lessor or agent of a les sor who violates this section
sh all be liable to the lessee in a civil action.”
Drouet does not compel a contrary conc lusion. In that case, a landlord filed an Ellis
Act unlawful detainer action in what he claimed was an effort to withdraw his rental unit from the market, and his tenants raised a defense of retaliatory eviction

. In writ of mandate proceedings posi ng the question whether tenants facing eviction pursuant to the Ellis Act may raise such a defense, the high court answer ed , yes, they may, but the landlord may
rebut such a defense upon proof of a bona fide intent to withdraw the rental unit from the
market as an action undertaken “for any lawful cause” under section 19 42.5, former
subdivision ( d )

. ( Drouet , supra , 31 Cal.4th at p p

. 594, 599

- 600.) Here, unlike the situation
in Drouet , where the landlord contended he filed an unlawful detainer action because he believed it was lawful to do so under the Ellis Act, all of the retaliatory conduct at issue took place before the settlement of the unlawful detainer action. Whatever explanations Sagi may have for his claimed retaliatory conduct, he cannot justify it by pointing to an agreement he had yet to make. Nor could Winslett’s agreement to move out somehow retroactively cloak Sagi’s prior actions with “lawful cause
, ” at least not in the a bsen ce of a release extinguish ing claims for prior conduct

. When the un lawful detainer action at issue
in this case settled, Sagi had the ability to seek such a release if he wished to avoid further controversy , but f

or whatever reason he failed to do so.

10 Section 1942.5, former subdivision (d) has been recodified in section 1942.5,

su bdivision (f), with some changes in wording that are not material here. (See Stats. 201 7 , ch. 489 , § 6 , No. 6 West’s Cal. Legis. Service, p. 3720.)22

D

. Claim Under The Oakland Just Cause For Eviction Ordinance Having determined that Winslett has shown a likelihood of prevailing on her claims
unde r section 1942.5, subdivision (d ), we turn now to her tenth cause of action for violation
of the Just Cause Ordinance

. In her first amended complaint, Winslett alleges that Sa gi
violated the Just Cause Ordinance by wrongfully endeavoring to recover possession of her apartment , failing t o make repairs, serving her with “ misleading notices, ” attempting to trick her into moving out without just cause, and not advising her of her r ight to contact the rent
board

. The Just Cause Ordinance provide s that “ [ n ] o landlord shall endeavor to recover possession, issue a notice terminating tenancy, or recover possession of a rental unit in the city of Oakland unless the landlord is able to prove the existence of one of the following grounds .” (Oakland Mun . Code, § 8.22.360 , subd. (A)

. ) Among the stated ground s for eviction is when “ [ t ] he tenant has failed to pay rent to which the landlord is legally entitled pursuant to the lease or rental agreement and under provisions of state or local law, and said failure has continued after service on the tenant of a written notice correctly stating the amount of rent then due and requiring its payment within a period, stated in the notice, of
not less than three days. However, this subsection shall not constitute grounds for eviction where tenant has withheld rent pursuant to applicable law. ” ( Oakland Mun . Code, § 8.22.360 , subd. (A)(1).)
The Just Cause Ordinance also states that “ [ a ] landlord shall not endeavor to recover possession of a rental unit unless ” a permitted ground for eviction is set forth “ in the notice and that ground is t he landlord’ s dominant motive for recovering possession and the landlord acts in good faith in seeking to r ecover p ossession.” ( Oakland Mun . Code, § 8.22.360 , subd. (B)(2 )

. ) Additionally, a notice terminating a tenancy must include “ [ a ] statement that advice regarding the notice terminating tenancy is available from the Rent
Boar d.” ( Oakland Mun . Code, § 8.22.360 , subd. (B)(6)(b).) Finally, “ [ w ] henever a
landlord

. . . wrongfully endeavors to recover possession or recovers possession of a rental unit in violation of Subsection 6(A) [8.22.360 A], the tenant

. . . may institute a civil proceeding for

. . . money dama ges of not less than three times actual damages (including23

damages for mental or emotional distress), and whatever other relief the court deems

appropr iate.

. . .” ( Oakland Mun . Code, § 8.22.370 , subd. ( A ) (2) , brackets in original .) As noted above, the f

iling of an unlawful detainer action and the service of a notice to quit are acts arising from protected activity under the anti

- SLAPP statute

. “ ‘ But the mere fact an action was filed after protected activity took place does not mean it arose from
that activity. ’ [Citation.] ‘ Moreover, that a cause of action arguably may have been

“ t riggered ” by protected activity does not entail that it is one arising from such. [Citation.]
In the anti

- SLAPP context, the critical consideration is whether the cause o f action is based

on the defendant’ s protected free speech or petitioning activity. [Citations.] ’ ” ( Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1275 ; Clark
, supra , 170 Cal.App.4th at
p. 1284 .) T he Just Cause Ordinance “ permits a tenant to recover damages for

. . . a range of
conduct that does not necessarily include filing a lawsuit to recover possession ” ( Rental Housing A ssn. of Northern Alameda County v. City of Oakland (2009) 171 Cal.App.4th 741, 767 ) , and here Winslett chose to avoid ba sing her claim on the eviction itself. The
tenth cause of action focuses on the reasons Sagi “endeavor[ed] to recover possession ” (see
Oakland Mun . Code, § 8.22.36 0 , subds. (A), (B)(2) ), not on the eviction proceedings

. ( See
Clark
, supra , 170 Cal.App.4th at p. 1284 [allegation of fraud against landlord in suit by tenant for retaliatory eviction, where landlord lied about his intent to move a relative into
rental unit subject to rent control and then evicted the tenant under the Ellis Act
, thereby allowing the rent to be raised to market level , does not arise out of anti

- SLAPP protected activity].)
Unlike her section 1942.5 claims as pleaded in the eighth and fifteenth causes of
action
, Winslett grounds her tenth cause of action on Sagi’s retributive tactics prior to the eviction proceedings. While Winslett’s section 1942.5 claims incorporate and replead all of the background allegations in her first amended complaint, including paragraph 15

— which alleges t he ini tiation of unlawful detainer proceedings as the culminating act

— the background allegations incorporated into her tenth cause of action omit th at paragraph. Sagi tries to argue around the careful framing of this claim by selectively focusing on a

vague reference in it to “ misleading notices
, ” an allegation he contends can only refer to the24

notice to quit, which marked the formal initiation of the unlawful detainer process. But t hat reading of Winslett’s claim for violation of the Just Cause Ordinance se ems to us a stretch.
W hatever she may have meant in referring to “misleading notices,” we do not understand it
as shorthand to re allege what she deliberately skipped over by omitt ing paragraph 15

. Ultimately, Sagi ’s position on the tenth cause of action r ests on the argument that, in a brief filed in support of a discovery motion, Winslett admitted th at this claim is based on
the filing of an unlawful detainer action

. Winslett does not deny that, in substance, her lawyers said as much in th e offending brief, but she characterizes the language they used to
describe the tenth cause of action there as an “unintentionally broad misstatement” that has no legal effec t. This issue , in our view
, is nothing but a distracti on. We are not impressed by Sagi’s att empt to draw Winslett into a debate over what was or was not meant by statements in a collateral discovery motion that is not under review in this appeal

. T he basis for invoking rules barring a party from taking inconsistent positions in litigation is who lly
l acking. The doctrine of judicial estoppel cannot be invoked where the position first assumed was taken as a result of ignorance or mistake ( Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 182)
, and the related doctrine of equitable estopp el only applies
to the intentional assertion of an inconsistent position. ( Ibid .) Sagi makes no attempt to argue that eith er species of estoppel applies.
In t he sole case on which Sagi relies, Brown v. Boren (1999) 74 Cal.App.4th 1303, the appellant tried and lost fraud and breach of fiduciary duty claims in a bench trial , and
then sought to base her appeal on a contract theory, representing to the appellate court that
she tried the case on contract as well as tort theor ies

. ( Id. at pp

. 1308

- 1310, 1313, 1316

- 1317.) Finding that representation not borne out by the record , the appellate court refused to allow the change of position

. ( Id. at pp. 1316

- 1317, 1320.) Th is is plainly a different
situation from what we have here. It is one thing for a party to shift positions on appeal when the change is to the basis of the ruling under review, thereby depriving the trial court of the opportunity to correct error in the first instance. It is quite another when the change
relates t o some collateral ruling not under review. In that circumstance

— which is this25

case

— we enforce consistency only when the rules of judicial or equitable estoppel demand
it

. Accordingly, we conclude that t he gravamen of Winslett’s tenth cause of action is

n ot rooted in the unla wful detainer action , in the notice to quit, or in any other protected free speech or petitioning activity
, but rather lies in the broader circumstances surrounding the
eviction
, in particular all of the alleged pressure tactics designed to force Winslett to abandon her apartment and cease making complaints about tenantability. Because Winslett’s Just Cause Ordinance claim does not arise out of protected activity, there were no grounds for stri king it under the anti

- SLAPP statute. III.
CONCLUSION AND DI S POSITION The trial court erred in striking Winslett’s eighth, tenth and fifteenth causes of action
under Code of Civil Procedure section 42 5.16, subdivision (b)

. W e therefore reverse the
order granting Sagi ’ s anti

- SLAPP motion
, as well as the accompanying award of attorney
fees and costs.26 _________________________ Streeter, Acting P.J.

We concur:

_________________________ Reardon, J.

_________________________ Schulman, J. *

* Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

A146932 / Winslett v. 1811 2 7th Avenue LLC27

Trial Court: Alameda County Superior Court
Trial Judge: Honorable Stephen M. Pulido
Counsel for Appellant: Siegel & Callahan, Caleb Andrew Rush; Law Offices of Andrew Wolff, Andrew Wolff, Chris Beatty, Sheena Patel
, Wortham Briscoe

Counsel for Amici Curiae for Appellant: City of Berkeley, Rent Stabilization Board, Matthew Brown ; Centro Legal de la Raza, Martina Ines Cucullu Lim; East Bay Community Law Center, Ubaldo Fernandez
Counsel for Respondent: Burnham Brown, Charles Anthony Alfonzo, Michelle Denise Jew , Brian R. Thompson

Winslett v. 1811 27 th Avenue (A146932)